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Fact Sheet

ACT 183 THE DESTITUTE PERSONS ACT 1977


In this issue:
● ● ●

Anti-vagrancy raids and arrests


do not end homelessness and poverty.
We cannot fight homelessness by
abusing the rights of homeless persons.

The Destitute Persons Act: Why is it an issue?

Today, government strategies for dealing with


homelessness largely depend on application of
DBKL officers taking persons into custody the 1977 Destitute Persons Act (DPA). The DPA
during Ops Gelandangan. Oct. 25, 2013 is the product of a 100 year legacy of vagrancy
ordinances first brought by the British in 1872.
The intent of the law is written as: “to provide for
the care and rehabilitation of destitute persons
and for the control of vagrancy”. In reality, this
law is used to justify—and perpetuate—
colonial era practices of harassment, mass
round-up, lengthy remand, and forcible
confinement of homeless persons through
government programs such as Operasi
Gelandangan.
Implementation of the DPA involves processes
that violate the constitutional and human rights
of persons on the streets, such as their right to
personal liberty, freedom of movement, equal
protection, and property. These violations
complicate homeless persons’ ability to establish
personal security and well-being. In other
words, it makes life harder for people already
enduring hardship.
Operasi Gelandangan and other DPA programs
cost taxpayers millions of Ringgit each year, yet
they provide no practical solution to the
problems of poverty and homelessness faced by
persons on the streets.
Government programs should be designed in
accordance with the equal rights, freedoms,
dignity, and needs of all citizens.
We cannot fight homelessness by stepping on
the rights of homeless persons.
THE DPA: 140 YEARS OF HISTORY

1872—First anti-vagrancy ordinance


enacted in the Straits Settlements. 1870s-
Offenders sentenced to prison or fined.
1930s
Persons
1872-1939—British anti-vagrancy charged with
vagrancy came
ordinances are introduced and amended
from all
throughout the Straits Settlements and ethnicities.
Federated and Unfederated Malay States. British elites had a special interest in using
the law to remove : 1) the “disgrace” of poor
whites (typically unemployed sailors) and
1947—Capture and detainment of 2) surplus (or injured) workers from tin and
“beggars” and “vagrants” was reinstituted rubber industries during economic slumps.
by the governor of the Malayan Union.
Anti-vagrancy ordinances are designed
to remove poor persons from public
1954—The Department of Welfare view, not to solve poverty.
conducted its first study into homelessness.
The report criticized the “despotic” nature of
anti-vagrancy laws that “deprive beggars and 1962—Federal agencies interested in removing
vagrants of their liberty… [and] their civil rights.” *
“beggars” and “vagrants” from the cities began
drafting a consolidated vagrancy law designed to
“encompass all the States of Malaya”.

1965 Aware that such a law would violate


The Vagrants Act constitutional protections, especially Article 9
1965 takes effect, (2), they enlisted the help of Parliamentary
providing Counsel to produce The Vagrants Bill 1964, a
justification for anti quasi-legal foundation for rounding up and
-vagrancy round detaining poor and homeless persons.
ups by Police
across Malaysia.

1974—Ministry of Welfare Services report


1977—The Vagrants Act is replaced by states that anti-vagrancy legislation is of “little
The Destitute Persons Act. positive help” as it punishes persons for
The DPA differs from its predecessor in that, disadvantage, and directs public resources
instead of Police, officers authorized by social towards punishment rather than essential aid.**
welfare and local authorities are granted the
power to round up “beggars” and “vagrants”.

2008-Today—In 2008, the Ministry submitted but


later withdrew Bill DR18/2008 to amend the DPA. It
included clauses for expanding officers’ powers and
protecting government from lawsuits, among others.
In 2011, Sabah became the last state to adopt the DPA,
which now formally covers all Malaysia. Round ups have never solved the problem of
homelessness. But failure of this strategy is
New facilities were established in Selangor, Sabah, & regularly blamed on homeless persons.
Sarawak, indicating plans to expand the system.
The MWFCD is preparing to amend the DPA, possibly
to further penalize begging and/or homelessness.
*Central Welfare Council. (1958). Social Survey on Beggars and Vagrants.
University of Malaya.
**Ministry of Welfare Services. (1974). Report on the Preliminary Study of
Beggars and Vagrants in Sungai Patani, Kedah.
Implementation of The Destitute Persons Act 1977, as per its SOP

Key legal components of


The Destitute Persons Act
Section Defines destitute persons, welfare
2 homes, and administrative actors
Assigns officers under social
Section welfare and local authorities with
3(1) the power to take suspected desti-
tute persons into custody
Assigns magistrate judges with the
Section
authority to forcibly admit
3(2)
persons to welfare homes
Stipulates criminal penalties for
Section
acts such as resisting detainment,
11
or escaping a facility

The SOP delineates three kinds of operations, essential for implementation:


 Integrated—Regularly scheduled large-scale operations involving multiple agencies such as
AADK, JPN, Immigration, and Alam Flora; Typically target homeless and street populations (as
opposed to persons begging);
 Periodic—Small-scale operations conducted at the discretion of JKM, primarily
targeting persons begging in public spaces; and
 Ad hoc—Operations conducted in response to public complaints.
In Kuala Lumpur, integrated operations are managed under DBKL, whereas periodic and ad-hoc oper-
ations are under the direction of the Federal Territory Social Welfare Department.

Post-custody procedures for integrated operations


Operations are regularly conducted throughout Malaysia
such as in Kuala Lumpur, Shah Alam, Georgetown, Ipoh,
Johor Bahru, Kota Kinabalu, and Kuala Terengganu.

Official data shows that, in 2011, authorities conducted


1,190 operations nationwide, detaining 1,408 people.
Overall, there were 7,833 detainees between 2007-2011.

Capture in operations does not avail persons to any


special forms of assistance, other than the possibility of
involuntary admission to a “welfare home”.

In Kuala Lumpur, anywhere from 30 to 100+ persons


are caught in each integrated operation.
Persons caught are subjected to questioning, drug tests, and
background checks at the discretion of authorities (see right).

Roughly 80% are released hours later, with no transportation


back to the city, as participating agencies have no grounds for
remanding them*. This is systematic harassment.
JKM may detain persons at length by obtaining from a
In 2011, the Ministry of Women held 929 persons in Desa magistrate judge (in chambers): a) a one-month remand order,
Bina Diri facilities in Pahang & Johor, 25% over capacity. sometimes followed by b) an order for involuntary admission to
a government welfare home for up to three years.
A 2012 survey** found that half (48%) of randomly
selected homeless persons had experienced being No one in these homes, even persons who enter voluntarily,
rounded up in operations, three-quarters (72%) of may leave of their own volition; permission of
whom reported being rounded up multiple (2-10) times. the Superintendent appointed by the Minister is required.
* Facilities run by the Ministry of Women, Family, and Community Develop- * *Rusenko, Rayna M. (2013, unpublished thesis). Metamorphosis of the City,
ment for “destitute persons” aged 19-59. Street Homelessness, and the Destitute Persons Act. University of Malaya.
Impacts

In Malaysia, it is not a crime to be homeless. But the DPA allows local authorities and
social welfare departments to round up, remand, and detain homeless persons against their will.

Such a system violates the rights and In addition, round ups and detention of
freedoms guaranteed to all Malaysian citizens homeless persons negatively impacts their
under the Federal Constitution, as well as those health, incomes, assets, access to social
guaranteed to all people under the Universal support networks and overall personal
Declaration of Human Rights. security in multiple ways.
—————

Implementation of the DPA entails Assets—Persons targeted by operations must endure


violations of the following rights. authorities disposing of their property. Also, in order to avoid
operations, persons with income (from work, family support)
will spend some of what little money they have on patronizing
Personal Liberty [Article 5(1), Constitution; Article 3, UDHR] restaurants to avoid being a visible target on the streets.
The right to personal liberty guarantees all people freedom
from arbitrary arrest and detention, as well as the right to Earnings—Persons with jobs are prevented from sleeping
exercise choice in their lives within the confines of the law. when caught in—or fearful of—operations. This may hurt
work performance and, ultimately, result in wage or job loss.
Round ups, remand, and forced confinement at welfare
homes deprives women and men experiencing Health—Many people suffer sleep deprivation and
homelessness of such personal liberty. The legal system psychological stress due to the threat of operations or post-
allows officers to indiscriminately pick up and detain custody events. Also, all persons released post-custody are
forced to walk back (1.5++ hours), regardless of age, (dis)
anyone at will, in the name of unilaterally imposing
ability, and physical or mental health condition. In addition,
government “care and rehabilitation” without citizens’ consent.
research shows that conditions at DPA facilities are not
conducive to detainees’ good mental & physical health.*
Freedom of Movement [Article 9(2), Const; Article 13, UDHR]
Social support—Social connection is vital for quality of life.
Homeless persons, owing to their social and economic
Naturally this truth applies to persons who are homeless too.
circumstances, have little opportunity to enter private People on the streets generally have reduced access to social
property. Thus, they must spend most of their time in support from (former) co-workers, old friends, or family, but
public areas. By targeting them directly, DPA operations do gain much from peers. However, detainment forcibly
(and the loss of liberty they represent) serve to intimidate, separates people from their regular peer networks. This
exclude and remove persons experiencing homelessness deprives them of essential emotional and social support.
from public space. This obstructs their freedom to move While people who are homeless may not have much in
freely in Malaysia. the way of material, financial, social, and health-based
assets, what they do have is nonetheless precious and
Right to Property [Article 13, Constitution; Article 17, UDHR] necessary for maintaining personal well-being.
During integrated operation, officers may refuse to allow
people to take their belongings with them and Alam Flora Due Process [Article 5(1), Constitution; Articles 9 & 10, UDHR]
(contracted to clean during operations) often throws their Interview and survey data suggest that persons caught in
personal property away. Persons in remand centres and operations are regularly denied procedural due process,
welfare homes also have property confiscated or lost such as their right to be informed of the basis for action
without consent. The loss of personal property can be against them, their right to legal counsel, and an
devastating, especially since it often includes essentials opportunity to be heard in court. Moreover, despite the fact
like identification papers, health records, medication, that no legal appeals to a magistrate’s order have been filed
important contact information, and so on. over the history of the DPA (or the Vagrants Act), there are
countless cases of escapes from welfare homes; this raises
Right to Equal Protection [Article 8, Const; Article 13, UDHR] the question of whether individuals confined to homes
Public space, by definition, should be open to all, yet the have adequate access to an appeals system to regain
DPA allows government officers to forcibly remove poor liberty.
and homeless persons with impunity. Such treatment
discriminates against them, and unfairly segregates them Substantive due process is also an issue as the law is
from the rest of the public. Moreover, government appeals vague and overbroad, containing minimal specificity as to
for communities to report “destitute” persons further when authorities should and should not exercise power. In
encourage the public to discriminate against and exclude fact, this is why mass round-ups are technically possible
poor and homeless persons, too. under the DPA, even though the practice is not explicitly
provided for anywhere in the Act. Authorities have virtually
* Rusenko, Rayna M. (2013, unpublished thesis). Metamorphosis of the City, limitless discretionary power to take any person on the
Street Homelessness, and the Destitute Persons Act. University of Malaya. street—homeless or not, or begging or not—into custody.
Recommendations

1) Repeal the Destitute Persons Act


What’s wrong with the  Bring an immediate end to all operations.
 Terminate use of Desa Bina Diri and Rumah Seri
Destitute Persons Act?
Kenangan facilities for the purposes of the DPA.
140 years of implementation has  Review the cases of all persons detained in DPA
shown that the DPA and other facilities to humanely resolve the complexities of
punitive anti-vagrancy measures are transition in line with the wishes & needs of each.
not a solution to problems of  Release all persons who request release.
homelessness and poverty.  Persons who request residential care should be
relocated to facilities suited to their specific
The DPA leads to more harm than needs, such as those with specialized medical,
good. psychiatric, or disability assistance services.
 By undermining the constitutional and
human rights of law-abiding individuals. 2) Establish an inter-agency council on homelessness,
accountable to the Ministry and inclusive of relevant
 By intensifying structural inequality and
prejudice against homeless persons by partner agencies. The council ought to:
denying them equal protection.  Oversee investigation into critical factors linked
to homelessness, and
 By exacerbating the material, financial,
and social insecurity of people targeted by  Produce a Homelessness & Human Security Action
operations. Plan that clearly outlines what relevant govern-
ment ministries and agencies can do to better:
We are wasting valuable public a) monitor, understand & improve conditions for
resources on a misguided and persons experiencing homelessness as well as,
outdated approach. b) prevent homelessness.

The public’s true interest lies in 3) Ensure that the rights, freedoms, and needs of all
developing policies that enhance persons regardless of housing status are protected,
individual and collective human without reservation, by:
security by addressing poverty and  Pinpointing laws at the federal, state, and local
homelessness at their root. levels that criminalize homelessness and/or
disproportionately penalize homeless persons, and
initiate action to have them amended or repealed.
 Review laws, policies, and practices in federal
The Straits Times, August 20, 1956 agencies to identify discriminatory treatment of
homeless persons, particularly that which violates
their constitutional and international human
rights, and initiate action to have them revised or
terminated.

4) Advocate for the implementation of positive policy


and initiatives to address homelessness at all levels
of government. Evaluate and co-ordinate federal
... agency activities relating to homelessness while
[However,] stressing concern for specific target groups and policy
areas (see Policy Sheet).

“Malaya cannot legislate begging


out of existence because its root
causes are economic and social.”
For more information,
please contact Rayna:
Email—faiyaque@gmail.com

...

Laws and ordinances providing for the round up, arrest, & compulsory
detainment of persons experiencing homelessness;1872 to present.

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